IP Addresses Have Privacy Protected Status: German High Court

By Jabeen Bhatti

A recent ruling by Germany’s high court classifying certain internet protocol addresses as personal data deserving privacy protection will affect how companies process IP addresses going forward, privacy attorneys told Bloomberg BNA.

The German court’s ruling appears to be consistent with European Union-wide jurisprudence on the privacy-protected status of IP addresses in the context of government use, but a thorough assessment of its implications for the private sector must await the release of the full text of the opinion. In Germany, there is normally a wait of several months until the ruling is released beyond the parties to the proceeding. Until then, a conservative risk approach is for companies doing business in Germany to treat IP addresses as personal data requiring privacy protection.

The German court concluded that dynamic IP addresses must be considered personal data for the operator of a public website, Carlo Piltz, a data protection attorney at Reuschlaw in Berlin, told Bloomberg BNA May 18. Dynamic IP addresses are assigned by Internet service providers every time users connect to the internet.

The Federal Supreme Court (BGH) ruled May 16 that websites operated by the German government may store IP addresses of visitors to their websites without their consent, but only if necessary to ensure the “general functionality” of a website, such as to defend against a cyberattack. “In doing so, however, there needs to be a consideration of the interests and basic rights and freedoms of internet users,” the court said in a May 16 statement.

The case involves a lawmaker who challenged the German federal government’s storage of dynamic IP addresses of people using government websites. The BGH referred the case to the the European Union’s highest court, the European Court of Justice (ECJ), which ruled that dynamic IP addresses registered by a website operator are personal data if the operator could identify the visitor with additional information obtained from an internet service provider.

IP Addresses as Personal Data

Without the full text of the ruling, it “is absolutely impossible to say if there are great consequences,” Niko Harting, a privacy partner at Harting Rechtsanwälte in Berlin, told Bloomberg BNA May 18.

The impact of the ECJ’s decision on businesses was limited to website operators that are more likely to obtain information from the government, Harting said. It remains to be seen whether the German court followed that narrow line or took a broader view a that “IP addresses in general are personal data,” he said.

Piltz said that until the full text is released, companies should operate as if all IP addresses could be considered personal data by courts and privacy regulators.

The BGH has referred the litigation to the District Court of Berlin, where the case originated, with instructions to balance the legal interests of the parties and decide whether the government’s practice of storing users’ IP addresses is necessary to operate the website in question.

To contact the reporter on this story: Jabeen Bhatti in Berlin at correspondents@bna.com

To contact the editor responsible for this story: Donald Aplin at daplin@bna.com

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